Citation Nr: 21063480 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-47 210 DATE: October 14, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1975 to October 1996. The Board most recently remanded the claim in March 2019 for further development. There has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that his current sleep apnea disability had its onset while on active duty, more specifically when he was assigned to 1st Battalion, 12th Field Artillery. As noted in the prior remand, although the Veteran served for more than 20 years, his service medicals records are comprised of approximately 20 pages of documents, the majority of which are duplicate separation examination reports. The Agency of Original Jurisdiction (AOJ) made a final determination that the records could not be located and are therefore unavailable for review and notified the Veteran of the same. See June 2020 Final Attempt Letter. The claim must be remanded again because the February 2020 VA opinion obtained on remand is inadequate. The examiner concluded that the Veteran's diagnosed sleep apnea was "less likely than not" related to service. However, the rationale is based on a lack of specific testing during service; essentially, based on an absence of documented treatment. The examiner noted the Veteran's subjective reports of snoring during service "could be" due to OSA, but without specific testing, the examiner could not saw that the OSA "was" incurred in service. The question on appeal is whether it is at least as likely as not that the OSA is related to service. The inadequate February 2020 VA opinion provider appeared to base the negative opinion on a higher standard of certainty. The opinion provide on remand should consider the appropriate standard of proof and specific information in the record. The Veteran's private treatment records and his wife's lay statement both show the Veteran has been snoring since the 80's and would occasionally, "stop breathing" during sleep. See January 2017 Buddy Statement and February 2018 Medical Treatment Record. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician to determine the likely etiology of the Veteran's sleep apnea. Copies of all pertinent records must be made available to the examiner for review. Based on the record, the examiner should provide an opinion to the following: Is it at least as likely as not (50 percent probability) that any currently diagnosed sleep apnea was incurred in or is otherwise related to service? Why or why not? The absence of treatment records or documented testing during service cannot be the basis of a negative opinion. The examiner should specifically consider and discuss as necessary the Veteran's private treatment records and the Veteran's wife's lay statement. See January 2017 Buddy Statement and February 2018 Medical Treatment Record. The examiner is also advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. E. Bresler The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.